Hoe and Co. v. Foster and Sons.

Mr. Justice Kekewich thought that the property had passed, so that I do not differ from him. On the contrary I think that, on the facts, he took the right view, that after a time, antecedent to the 5th December, the Plaintiffs could not have taken these machines out of the possession of the "Liverpool Mercury," nor could the "Liverpool Mercury " have returned them to the Plaintiffs on the 5 ground that the machines did not answer the description.

The result thus far is that, I think, the invention was not new within the statute, and that there had been user by other persons within the statute.

Then a point was made about secrecy. The evidence, as has been pointed out, is of the loosest possible character, but supposing there was some obligation 10 to secrecy in the first instance, I am satisfied on the evidence that that obligation entirely came to an end and ceased to exist before the 5th December, the date of the patent.

Then it is not necessary in my opinion to go into the authorities; the MASTER OF THE ROLLS has pointed out-and I entirely agree with him—that 15 Newall v. Elliott is a different case, and after all, though the authorities on questions of this kind of fact are of great assistance, yet each case must be determined on its own facts. Here I think it is admitted on both sides, and rightly admitted, that the facts are very peculiar, and want special attention in order to see what the true result of them is, when applied to the Statute of 20 Monopolies. For these reasons I agree with the MASTER OF THE ROLLS.

VAUGHAN WILLIAMS, L.J.-I entirely agree. I only wish to add one or two words. According to my view there was a contract to supply and erect these machines, including this invention for folding that had been patented in America, and the price that was to be received by the Patentees in America, for supplying 25 and erecting these machines, was 6,8007. They sent over their men, and they then proceed to erect this machinery which they had agreed to supply. I very much doubt myself, whether in such a case it would have made any difference if they had in the most solemn way got an engagement for secrecy. I have the same doubt that I should have in a case where an inventor who had not 30 taken out a patent agreed to sell and deliver the patented article, and then, when he did sell and deliver the patented article, said to the purchaser immediately after delivery-"I am going to patent this, you will undertake, will "you not, to keep this matter a secret and not to disclose my invention." It seems to me that in such a case, even if such an engagement had been entered into, 35 there would have been a user by the Patentee himself. I am aware that the Statute of Monopolies speaks of user by others, and at the same time there is no doubt that a user by the Patentee does prevent his subsequently taking out Letters Patent, and it seems to me that really, wherever you have a Patentee supplying the patented article in such a way and to such an extent that he 40 cannot recall the patented article-that he cannot impose any obligation of secrecy-immediately you have that state of things, it becomes impossible for the inventor subsequently to take out Letters Patent.

LINDLEY, M.R.-The appeal will be dismissed with costs.

Brooks v. Lamplugh.

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IN THE HOUSE OF LORDS.

Before THE LORD CHANCELLOR, LORD WATSON, LORD SHAND, LORD DAVEY, and LORD LUDLOW.

November 28th and 29th, and December 8th, 1898.

BROOKS v. LaMPLUGH.

Patent.-Action for infringement.-Subject-matter.-Defendants held not to have infringed.

This was an action for the infringement of four patents (one not being relied on at the trial):-The first was for improvements relating to the base frame of cycle 10 saddles; the second for improvements in the boss on the pillar of the cycle; the third for improved means of adjusting the tilt of the saddle. The Defendants denied infringement, and alleged that the patents were invalid on various grounds; No. 1, on the grounds of want of novelty and subject-matter, anticipation, want of utility and insufficiency; No. 2, on the grounds of want of 15 novelty and subject-mater, insufficiency, variance, and anticipation; and No. 3, on the grounds of anticipation, want of subject-matter, variance, and prior grant. It was held, at the trial, that all the patents were valid, and had been infringed, the first patent being the application of an old principle in a way which involved the exercise of ingenuity; as to the second patent, that the alleged 20 variance from the Provisional was only such a change as might fairly follow on further consideration by an inventive mind of the method of the Provisional; as to No. 3 patent, that the Specification alleged as a prior grant was itself invalid on the ground of variance. Judgment was given for the Plaintiff, with costs, except so far as the same had been increased by the inclusion of the abandoned 25 patent, and the order certified that the alleged prior grant was invalid. Defendants appealed. Held, on appeal, that the first patent was valid, since the words at the end of the first claim, "substantially as described and set forth," limited the claim for use in base frames of a trussed beam to the particular manner described in the Specification, and, further, that this patent had been 30 infringed; that, as to second patent, Figures 8, 9, and 10 were not within the Provisional Specification, and, further, the Defendants had not infringed this patent; and that, as to the third patent, without deciding the question of validity, the Defendants had not infringed it. The appeal, as regards the first patent, was dismissed with costs; but, as regards the second and third patents, it was 35 allowed with costs, the costs to be taxed as if there were separate actions. A certificate was given that the Particulars of Objections to the second and third patents were reasonable and proper.

The

The Plaintiff appealed to the House of Lords from so much of the decision of the Court of Appeal as applied to the third patent.

D

Brooks v. Lamplugh.

Held, by the House of Lords, that the Defendants had not infringed the third patent. The appeal was therefore dismissed with costs.

On the 30th of September 1890, a patent (No. 15,424 of 1890) was granted to J. B. Brooks for an invention of "Improvements in velocipede saddles." Portions of the Complete Specification will be found in 15 R.P.C., at page 34. 5

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On the 9th of December 1892, a patent (No. 22,608 of 1892) was granted to the said Brooks for an invention of " Improvements of cycle saddles." Portions of the Provisional and Complete Specifications will be found in 15 R.P.C., at page 35.

On the 29th of July 1893, a patent (No. 14,620 of 1893) was granted to 10 F. Easom and G. P. Mills for an invention of "Improved means for altering "and adjusting the position of cycle saddles." The Provisional Specification stated as follows:-"This invention relates to improved means, whereby the "angle, inclination, or tilt of the saddle of cycles may be altered and adjusted "to suit the rider, while the position of its fulcrum or bearing remains 15 "constant, relatively to the saddle; or that the saddle may be moved forwards "or backwards, as desired.

"For the purpose of our invention, we braze or otherwise attach to the end of "the saddle pillar a tubular piece or block through which passes a bolt, or its "equivalent, carrying washers at each side of the said piece or block, and 20 "through these washers pass the wires forming the framework of the saddle. "The washers are capable of being turned round upon the bolt, and, together "with the tubular piece or block, form the tilt. When the saddle, and with it "the washers, have been turned to the desired angle, the tilt is tightened up by means of a nut on the end of the bolt. The saddle may be adjusted fcre and 25 "aft by sliding its wires through said washers.

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"Or the wires may pass between two washers at each side of the tubular 'piece, and one of the washers may constitute the bolt head.

"Or we may make the tilt detachable from the saddle pin or pillar. In this case the pillar may consist of a metal tube having a hole drilled through it 30 "at the end, and plugged or bushed if necessary. The tilt is then made up of, say, six parts, namely, two cheeks or centre pieces to surround the tube, and "four washers (two at each side of the tilt) slotted for the reception of the wires "of the saddle framework. Shoulders are formed on the centre pieces to fit in 66 recesses in the washers next them, and the whole is drawn together and 35 "secured to the saddle pin or pillar by a bolt passing through the washers and "centre pieces, and through the hole at the end of the saddle pillar, and thus "forms the pivot of the tilt.

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"Our invention may likewise be applied to saddles having slotted or girder or like frames. For this purpose instead of two slots, one central slot would 40 "be formed in the washers, of suitable dimensions, to receive the slotted or "girder frame. Or the inner washers may be dispensed with, and the pivot "bolt may pass through the slots in the girder frame, and the outer washers be 66 so shaped as to support the frame underneath.

"Tilts constructed according to our invention weigh less than those at 45 66 present in use, and in racing cycles the washers and the centre piece, which may be of any desired shape, may be constructed of aluminium."

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The Complete Specification was left on the 28th of April 1894, and accepted on the 9th of June 1894, and (so far as material) stated as follows:-" This "invention relates to cycle saddle bosses or to clamping means for securing or 50 "connecting the saddle to the boss and the boss to the pillar or L bar by a single movement of a nut or equivalent, and which invention is an amplifica"tion or a further development of the connection means or bosses described in "several former Letters Patent granted to John Boultbee Brooks the Assignor "of our said invention and bearing date respectively the 18th day of March 55 "1893 No. 5829, the 28th day of April 1893 No. 8553, the 16th day of May

Brooks v. Lamplugh.

"1893 No. 9756, the 9th day of December 1892 No. 22608 and the 13th day of "April 1891 No. 6283.

"Figure 4 represents a horizontal section upon the dotted lines A B Figure 1, "whilst Figure 5 is a like horizontal section upon the dotted lines C D of the 5" said Figue 1.

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"In Figures 1 to 7, the boss consists of six strung-together component parts "viz., two inside gripping cheeks a, of softish metal, (within which the points "of set screws can slightly embed themselves) having circular shoulders a1, and "inside and concaved gripping faces a2, semi-circular in cross section and "adapted to embrace (when forced home or drawn together) the tubular pillar "member b, which has through it, a transverse hole b', wherethrough the pin or bolt c, having a washer head c', at the one end, and a wormed part c2, at "the other end, passes, and which bolt or screw pin c, also is directed through "holes a3, in the cheeks a, and holes d', of an intermediate and rotating washer 15 "d, located between end washer e and the outside face a1, of the cheeks a, upon "one side, and between the washer head c1, and the face a', of the cheek a, upon "the other side. f are wires or rods of the saddle framing taking and lying "within keep grooves e', d', of outside washer e, and interposed washer d, on one side, and keep grooves c3, d, of the head washer c', and intervening 20 "washer d, upon the other side, which last named washer d, has clearanc holes "d3, through it, to admit of the points g', of the set and locking pins g, screwing through the head washer c', taking or impressing themselves into the "unhardened metal of the face of the cheek a, upon the pin side.

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"It is understood that the holes d', in the washers d, beside threading over "the stem of the pin, also take over the annular shoulders a1, on the outside "faces of the cheeks a.

"A nut h, takes upon the screwed end c2, of the bolt or pin with a nut "washer h2, in front of it.

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"Assuming that the nut h, is loose, and also that the point of the locking ping, is clear of the face of the cheek and that the two-high frame-rods f, of "the saddle framing are placed in the respective keep grooves of the opposed parts, now adjust the saddle to the position required by sliding the same longitudinally within the keep grooves and at the same time giving the tilt "required by collectively turning the washers d, e, and head c', with bolt c. "That is, when the parts are loose, the moving of the saddle vertically, turns "the component parts round and when in the positions required, then screw up the nut h, drawing all the component parts together, with the inside "bearing faces of the cheeks pressing upon the pillar member, and thus "the frame rods are secured or clamped to the boss and the boss to the seat 40 "pillar.

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By now screwing home the set pins g, the component parts of the boss are "locked or are prevented from turning upon each other.

"Having now particularly described and ascertained the nature of our said "invention, and in what manner the same is to be performed, we declare 45 "that what we claim is :-First. In cycle saddle bosses or attachments, gripping "or securing the frame rods, or the frame wires, or the frames, of cycle saddles "between intervening and rotating washers, disposed upon the outside faces "of the gripping cheeks, and outside washers, or an outside washer and a head "washer, carried by a bolt or pin, which said opposed washers preferably have 50 keep grooves or sinkings within them for receiving or seating the said wires or frames, substantially as and for the purpose as described and set forth in "Figures 1 to 10.

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Secondly. In cycle saddle attachments or bosses, the combination with the rotating and inner washers located between the gripping cheeks and the outer 55" washers, of setting and locking screws or pins g, substantially as and for the purpose as described and set forth.

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"Thirdly. In cycle saddle attachments or bosses, the general construction,

Brooks v. Lamplugh.

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arrangement and combination of the parts substantially as described and set "forth."

Under an assignment, dated the 1st of December 1894, the patent (No. 14,620 of 1893) became vested in the said J. B. Brooks.

On the 28th of March 1895, J. B. Brooks commenced an action against 5 Eliza Lamplugh and Edward Lant Tyndall, legal personal representatives of James Alfred Lamplugh, deceased, and the said Eliza Lamplugh and Edward Lant Tyndall, trading as J. A. Lamplugh and Co., for infringement of the above three patents, and three others, of which two were not proceeded with at all, and the remaining one, No. 8652, was not relied on at the trial. By the 10 Statement of Claim, the Plaintiff stated that (1) J. A. Lamplugh died on the 18th of June 1895; (2) the said J. A. Lamplugh, deceased, infringed the Plaintiff's first three patents; (3) the Plaintiff was the true and first inventor of the first three patents; (4) the Plaintiff was duly registered owner of the Easom and Mills patent; (5) the said J. A. Lamplugh, deceased, infringed 15 the patent (No. 14,620 of 1893); (6) the said patents were valid and of full force and effect; (7) by reason of such infringements the estate of the said

J. A. Lamplugh had been benefited to the amount of the profits claimed in this action in respect of such infringements. The Defendants, E. Lamplugh and E. L. Tyndall had, since the death of the said J. A. Lamplugh, carried on 20 the business of J. A. Lamplugh and Co., and had infringed, and had threatened to infringe, the Plaintiff's said patents; and the Plaintiff claimed the usual relief, and against the Defendants, as the personal representatives of the said J. A. Lamplugh, an account of profits in respect of infringements committed by the said J. A. Lamplugh prior to his decease; and costs.

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The re-amended Particulars of Breaches stated that-(1) The said J. A. Lamplugh, prior to his decease, and the Defendants, since the decease of the said J. A. Lamplugh, had at divers times manufactured, sold, supplied, let on hire, and used bicycle and tricycle saddles in infringement of the said four patents. (2) Types of the infringements complained of were the saddles manu- 30 factured and sold by the said J. A. Lamplugh and by the Defendants since the decease of the said J. A. Lamplugh, under the names and descriptions following:-"Lamplugh's '95 404," "Lamplugh's '95 Semi-Race," "Lam"plugh's '95 Roadster," "Lamplugh's '95 Race," "Lamplugh and Co.'s 255,"